VASQUEZ v. THE STATE OF NEW YORK, #2007-044-016, Claim No. 106143

Synopsis

Claim for negligent supervision in inmate-on-inmate assault dismissed after
trial for failure to prove that the assault was foreseeable. Claimant's
testimony that he looked for a correction officer to report the assault, but
none were present in the gym at the time (thus arguably rendering the assault
foreseeable) was not credible, and was contradicted by disinterested, credible
testimony and documentary evidence that claimant was actually trying to conceal
his injury.

Claimant, an inmate, brings this claim against defendant State of New York
(defendant), alleging that he was assaulted on March 9, 2002 by an unidentified
fellow inmate due to inadequate staffing and negligent supervision by the
Department of Correctional Services (DOCS) at Elmira Correctional Facility
(Elmira). Trial of the matter was bifurcated and held in the Binghamton
District on April 3-4, 2007. This decision addresses only the issue of
liability.

Claimant had been housed at Elmira for approximately 12 days before the
incident, although he had previously been incarcerated at Elmira for
approximately 12 years during the course of his sentence. When he was admitted
to Elmira shortly before this assault, he advised facility officers that he had
no known enemies. He also testified at trial that he was not aware of having
any enemies, and that he had no reason to know he was going to be attacked.

At the time of the assault, claimant was seated in the bleachers near the
televisions at the basketball court located in Elmira's gym. An allegedly
unknown assailant with two accomplices crossed the gym, went up the stairs into
the bleachers, and slashed claimant's face with a razor blade. Claimant
contends there was no correction officer (CO) on duty on the gym floor (or in
the bleachers) at the time of the assault, and that the attack would not have
occurred had the gym been properly staffed and supervised.

The “gym area” at Elmira consists of an outdoor recreation yard and
the gym itself, which includes a shower and telephone area adjacent to the gym,
as well as a glassed-in office for the COs. There is an elevated observation
booth which has windows overlooking both the yard and the gym. A video camera
and recorder is maintained in the booth, although its field of view does not
capture the entire gym area at once. CO Carloni, who was in the booth at the
time of the assault (although she said she did not see the attack), testified
that the officer staffing the booth is supposed to rotate the camera to cover
different parts of the gym on a routine basis. When the camera is not being
moved, the officer must move around the booth in order to see all parts of the
gym and yard. That officer's duty is to monitor the inmates with the video
camera and through surveillance, and to communicate with other officers in case
of any incident.

According to Carloni, the gym area constitutes one security unit, to which ten
officers would routinely be assigned. One officer would be assigned to the
COs’ office, one to the observation booth, and two to a desk in the
shower/telephone area. Four officers would normally be assigned to posts
outside in the gym yard, and two would be in “roving posts” on the
gym floor. The prison log sheet for the gym area for the date and time in
question does not indicate which CO took which posts in the yard and gym.

In order to access the gym, all inmates must enter through one gate. According
to the prison logs, there were 157 inmates in the gym area at that time. The
log also indicates that the temperature in the gym was high, and the officer
keeping the log complained, but was advised that nothing could be done without
shutting off the heat to the entire facility. Moreover, weather records
submitted into evidence indicate that the temperature on that clear day reached
64 degrees.[1]

CO Cardinale, who was on duty in the shower area at the time of the incident,
testified that he became aware that there was a problem when an inmate caught
his attention and gestured toward the bathroom. Cardinale went into the
bathroom and found claimant kneeling on the floor in front of a toilet.
Cardinale observed that claimant was holding something to his face, and that he
appeared to be washing his face in the toilet. Cardinale told claimant to get
up, which claimant eventually did, although Cardinale had to tell him more than
once. When claimant did arise, he continued to hold a piece of cloth to his
face and turned his head away from Cardinale. When Cardinale told him to remove
it, Cardinale observed the laceration incurred in the assault, and took claimant
to the medical area of the facility. Cardinale recorded claimant’s
attempt to conceal his injury both in an Inmate Misbehavior Report
(Claimant’s Exhibit 8) and in a memo to his supervisor, Captain
Hughes[2] (Claimant’s Exhibit 9).

Claimant testified that he was thereafter put into involuntary protective
custody, and was charged with failure to report the incident due to his going to
the bathroom and attempting to hide his injury, rather than reporting it to a
CO. The videotape of the gym at the time of the assault was preserved at
claimant's request for use at the disciplinary hearing and was admitted into
evidence at trial (Claimant’s Exhibit 4). The tape does not show the
actual assault, which occurred out of the field of view of the camera, but it
does show three individuals (one of whom was presumably the assailant) walking
across the gym floor toward the stairs where claimant was seated in the
bleachers. The time stamp on the tape indicates that this occurred at 1:59:17
p.m. At 1:59:42 p.m., an individual identified by claimant during his testimony
as a Correction Sergeant is seen on the tape exiting the COs’ office and
walking out the gym door to the gym yard. At 2:00:09 p.m., the tape shows
claimant exiting the staircase to the
bleachers,[3] holding something to his
face[4] as he walked into the bathroom
area.[5] Claimant testified that he looked
around the gym area for a CO after he was attacked, but did not see one, so he
went into the bathroom to clean the blood off his face.

At trial, claimant attempted to bolster his contention that there were no COs
in the gym by reviewing the videotape and attempting to track the COs'
activities and locations. During his testimony, he identified the COs based on
their attire and the color of their shirts (although, again, the videotape was
recorded in black and white). While individuals appearing to be COs entered and
exited the security office during the course of the video, it was impossible to
determine from the video whether any officers were on the floor of the gym
outside the range of the camera.

CO Cardinale testified that he believed eight to ten officers were assigned to
the gym area that day.[6] He said he did not
know how many of those officers were actually in the gym at the time of the
assault, nor did he know how many inmates were in the gym. He stated that he
had worked security in the gym approximately 20 to 30 times before that day, and
did not believe that it was an area with a high incidence of assaults.

Captain William Hughes was on duty at Elmira on the day of the incident,
although not in the gym area. He testified that the gym area was not
short-staffed on the date of the incident. He also stated that DOCS
administration in Albany makes the determinations regarding staffing and how
many COs should be assigned to any particular area. Hughes prepared the Unusual
Incident Report (Claimant's Exhibit 14) regarding the incident. That report
indicates that the gym was closed after the assault was reported, and the
inmates and the gym were searched. The report further indicates that a
“razor-type weapon” was found in a weight bar in the weight area
(which was located directly in front of the bleachers where claimant was sitting
when he was attacked). Hughes testified that there had been no indication prior
to the assault that claimant was in danger or that an assault would take place
in the gym on that date.

Sergeant Christopher Post was a DOCS employee at Elmira at the time of the
incident. He was the kitchen/gym sergeant, and his duties included running the
gym at night. Sergeant Post's involvement in this incident arose when a
superior at Elmira asked him to investigate an internal written complaint made
by claimant alleging that his injuries arose from a lack of security coverage.
He interviewed claimant regarding the incident on September 25, 2002, and
submitted a written report (Claimant's Exhibit 17) which indicated that claimant
did not report the incident when it happened, despite the proximity of the
bathroom door to the security office door (that being approximately 10 to 15
feet),[7] and further stated that claimant was
attempting to hide his injury when he was discovered by CO Cardinale. Post also
testified, based on his experience, that the security office was not soundproof,
and that any officer in the office was able to both hear and observe what was
occurring in the gym itself. He also stated that to the best of his
recollection, the window was clear glass, rather than being
tinted.[8]

Robert DeRosa, a licensed private investigator previously employed by the New
York City Department of Correction (NYCDOC) for 26 years, offered expert
testimony on behalf of claimant. DeRosa served as warden of the Anna M. Kross
Detention Center for Men at Rikers Island and as compliance chief for the NYCDOC
before his retirement from the agency in 1995.

DeRosa offered his opinion as an expert in penology and security that the New
York State Commission of Correction Minimum Standards and Regulations for
Management of County Jails and Penitentiaries (Commission Regulations),
promulgated for local correctional institutions, are relevant in establishing a
reasonable standard for the operation of any prison within the state (see
9 NYCRR 7000 et seq). He contended that the requirements of Section 7003.2 of
the Commission Regulations, which refers to the standard of active supervision
of inmates in activities outside the housing units, should have been applied to
Elmira's gym area even though that section pertains to local facilities, rather
than State prisons. Section 7003.2 defines active supervision to mean that
inmates should have an uninterrupted ability to communicate with staff without
the aid of any amplifying device; supervisory visits should be conducted at
30-minute intervals; and the staff should be able to immediately respond to
emergency situations. DeRosa stated that he reviewed the security post job
descriptions for the gym area. He opined that the required level of supervision
of the inmates as set forth in those job descriptions was the same as the
definition of “active supervision” in section 7003.2.

DeRosa testified that, in his opinion, DOCS' operation of the gym area at
Elmira was not consistent with the general principles of penology. He said it
was difficult to ascertain the plan for the deployment of the security officers
because the post descriptions allow the supervisor to assign the officer to
either a roving patrol or a fixed post. He stated that normally he would expect
that there would be a logbook kept that would specifically describe the location
assigned to particular officers on that shift. He believed that because the
officers were not assigned specific locations for which they are responsible, it
was impossible for them to fulfill their duties regarding the care, custody and
control of the inmates, and it was further impossible for the officers to
respond effectively in an emergency situation. He said that at one point on the
videotape (at approximately 1:15 p.m., nearly 45 minutes prior to the assault),
it appeared that

there were 11 correction officers located in the security
office.[9] In his opinion, that continuous flow
of officers into the office indicated that security was not being effectively
provided, and he believed that rather than being on a “roving
patrol,” the officers should have been located at designated posts in the
gym. DeRosa further stated that his review of the videotape indicated that the
supervising officer was not making regular
rounds1[0] to observe and enforce the levels of
supervision designated for those officers at any particular time. He also
testified that DOCS records show that recreation areas constitute the second
most frequent location for inmate-on-inmate assault (the first being the cell
blocks), and that Elmira had a relatively high incidence of such assaults among
the State's maximum security facilities. Further, in his opinion, a CO should
have been stationed in the bleachers.1[1]

On cross-examination, DeRosa conceded that the purpose of local correctional
facilities, such as the one where he was previously employed, was different than
that of a state facility. He acknowledged that the local facilities have fewer
inmates, who are generally at those facilities for less severe crimes. DeRosa
also admitted that he had never been to Elmira, and that he was basing his
opinions of how the gym area should be run securely on the descriptions and
layout provided to him by various materials, including descriptions given by
claimant.

DeRosa acknowledged that the regulation he cited as having been appropriate to
this situation (i.e., that the supervisor was not making regular
“rounds”) was not applicable to state prisons. He was not aware of
any regulation pertaining to state facilities which contained such a
requirement. He also admitted that it is impossible to prevent weapons, or
inmate-on-inmate assaults, at any correctional facility. He further confirmed
that there is no regulation requiring constant supervision of inmates, and that
constant supervision would be impossible. He acknowledged that assaults occur
even when all rules, regulations, directives and general principles of penology
are being correctly followed. Finally, he stated that, based on the policies
and directives provided to him, he was unaware of any violation of a DOCS
directive or regulation in this instance.

At the close of claimant's case, defendant moved to dismiss the claim for
failure to establish a prima facie case, upon which motion the Court reserved
decision.

Superintendent John Burge, Sr., the current superintendent at Elmira, testified
as an expert in the field of penology on behalf of defendant. Prior to his
testimony, claimant's attorney made an oral motion to exclude Burge's testimony
on two grounds. First, he contended, Burge's work relationship with the COs
testifying and who were involved in this incident would cause him to be biased.
Second, it was the attorney’s opinion that the witness would be unable to
articulate the basis for his opinions, and in fact such opinions might be based
on inadmissible evidence. The Court denied the motion, holding that the issue
of potential bias could be explored on cross-examination, and that if any bias
was established, that would go to the weight the Court gives Burge's testimony.
The Court further noted that an expert witness is not required to testify on
direct examination regarding the foundation for his opinions, but that the issue
could be explored on cross-examination, and that a motion to strike the
testimony could be made if necessary.

Burge testified generally regarding security and staffing, particularly with
regard to the recreation facilities at Elmira. He stated that DOCS' central
office in Albany establishes guidelines regarding staffing, and that the
facility is given a “plot plan” that specifies staffing by shifts.
He moreover said that security post position descriptions are also prepared in
Albany, and are based on staffing levels. He opined that there was adequate
staffing in the gym on the day and time claimant was assaulted, but he conceded
on cross-examination that he had no personal knowledge of whether the various
posts were staffed according to the directives. He further testified that his
review of claimant's record did not indicate that claimant was at any particular
risk for assault.

The State must provide inmates with reasonable protection against foreseeable
risks of attack by other inmates (Blake v State of New York, 259 AD2d 878
[1999]). Despite this obligation, however, the State is not the insurer of the
safety of inmates, and the fact that an assault occurs does not give rise to the
inference of negligence (Sebastiano v State of New York, 112 AD2d 562
[1985]). In order to establish that the State is liable for such an assault, an
inmate claimant must allege and prove that the State knew or should have known
that there was a risk of harm to the claimant which was reasonably foreseeable
and which the State could have prevented (Sanchez v State of New York, 99
NY2d 247, 253 [2002]; see alsoFlaherty v State of New York, 296
NY 342, 347 [1947]). Sanchez discussed the issue of reasonable
foreseeability at some length, and concluded that the State's duty to the inmate
not only encompasses what was actually known but also what it should reasonably
have known. In other words, the Court said: “the standard of care [is
that] normally due any party: reasonable care under the circumstances”
(Sanchez v State of New York, supra at 254).

Claimant’s theory of liability is essentially that the supervision
provided by defendant (i.e., allegedly having no officers on the gym floor) was
inadequate for the gym, a location with a relatively high number of assaults,
and did not constitute reasonable care under the circumstances. Claimant
asserts that having no COs on the gym floor created a situation in which
defendant should have had constructive knowledge that an attack was reasonably
foreseeable, but failed to take steps to prevent it, and thus breached its duty
of care toward him.

However, claimant has failed to meet the burden of proof that any duty was
breached in this case by a preponderance of the credible evidence. Claimant's
contention that there were no security guards on the gym floor at the time of
the assault is supported only by the fact that the videotape shows no COs on the
floor of the gym within the concededly limited range of vision of the camera,
and by claimant's own testimony. The Court, after observing claimant's demeanor
and testimony, combined with the other testimony and evidence submitted at
trial, finds that claimant was not a credible witness regarding his assertion
that he looked for a CO to whom to report the assault, and that one was not
available in the gym (see Di Donato v State of New York, 25 AD3d 944, 945
[2006]; Williams v State of New York, 291 AD2d 586 [2002]). The Court
simply cannot credit claimant's self-serving testimony that he was looking for
an officer in the gym to whom he could report the assault, when viewed in
conjunction with Cardinale's disinterested testimony that claimant was actually
trying to conceal his injury from prison officials immediately after the
assault. As well, there is uncontroverted testimony that Cardinale was in the
shower/phone area immediately adjacent to the gym, which was a regular guard
post, where claimant could have reported the assault to him there if he had
actually wanted to report it. Because claimant's testimony was the only basis
(given the limited view of the gym floor provided by the camera) for a potential
finding that there were no officers on the gym floor, claimant's theory - that
defendant had constructive notice that an attack would be reasonably
foreseeable, given the lack of supervision - must fail.

As claimant's own expert conceded, assaults can and will occur even when
supervision is being appropriately conducted. “When persons with
dangerous criminal propensities are held in close quarters, inevitably there
will be some risk of unpreventable assault, a risk the State cannot possibly
eradicate. The mere occurrence of an inmate assault, without credible evidence
that the assault was reasonably foreseeable, cannot establish the negligence of
the State” (Sanchez v State of New York, supra at 256).
Based on the evidence presented at trial, this is simply one of those
unfortunate and unpreventable cases. Claimant failed to demonstrate that
defendant had notice, whether actual or constructive, of a potential attack, and
thus failed to show that defendant breached its duty to him. Accordingly, Claim
No. 106143 is hereby dismissed.

Let judgment be entered accordingly.

July 5, 2007Binghamton,
New YorkHON. CATHERINE C. SCHAEWEJudge of the Court of Claims

[1].Claimant’s insinuation is that all the
COs were outside in the gym yard due to the heat in the gym and the pleasant
weather outside.

[2].At the time of the incident, Hughes’
title was Lieutenant. However, by the time of trial he had been promoted to
Captain.

[3]. The poor quality of the videotape, recorded
in black and white, made it effectively impossible to determine any individual's
identity. Claimant viewed the videotape during the course of his testimony, and
identified himself as the individual walking toward the bathroom.

[4]. Claimant testified he was holding his shirt
to his face in an attempt to close the wound.

[5]. Although claimant made much of the fact that
there is a gap in the videotape from approximately 2:02 to 2:28, the Court has
attached no significance to this, as it occurred both after the assault and
after claimant entered the bathroom area.

[6]. Claimant's Exhibit 16 is a handwritten list
of the officers who were assigned to the area that day. Including the
Correction Sergeant, that exhibit lists nine officers on duty at the time of the
incident.

[7]. Claimant testified at trial that he believed
that the glassed-in security office was actually the Inmate Liaison Committee
(I.L.C.) room, and did not realize that there would be security officers in the
office.

[8]. Claimant, on the other hand, testified
that the window was tinted.

[9]. It should be noted that DeRosa emphasized
that he was basing this assumption regarding the location of the officers on the
accuracy of claimant's description of the officers' attire. DeRosa qualified
his opinions more than once during the course of his testimony on the ground
that he had depended on the accuracy of claimant's statements in forming those
opinions.

[1]1. The Court notes that stationing a CO in
the bleachers would seriously hamper that officer's ability to respond
effectively in an emergency situation on the gym floor, given the layout of the
gym at Elmira.